By The Supreme Court on Friday said it would not review a decision holding that gender dysphoria is covered by the Americans With Disabilities Act, after a transgender woman sued a suburban Washington jail for housing her with men during her incarceration.
The U.S. Court of Appeals for the 4th Circuit in Richmond last August became the first appeals court to rule that the ADA’s exclusion in 1990 of “gender identity disorders not resulting from physical impairments” was different from what is now recognized as gender dysphoria. The latter condition is defined as the “clinically significant distress” felt by some of those who experience “an incongruence between their gender identity and their assigned sex.”
Leaving the decision undisturbed means that Kesha Williams’s lawsuit against the Fairfax County, Va., sheriff can proceed.
“Being transgender is not a disability,” 4th Circuit Judge Diana Gribbon Motz wrote in a 2-1 opinion. But “a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.”
Judge A. Marvin Quattlebaum Jr., who dissented, said the majority had changed the intent of Congress and words of the law based solely on “linguistic drift.”
“The same stress and discomfort from identifying with a gender other than the one assigned at birth that was excluded from the ADA as a ‘gender identity disorder’ is no longer excluded because an organization now calls it ‘gender dysphoria’ ” Quattlebaum wrote. “So much for looking to the meaning of a statute at the time it was written.”
The full appeals court voted 8-6 not to take up the case.
Since the 4th Circuit is the first to confront the issue, there is no conflict among lower courts at this time, which is often the most important prerequisite for Supreme Court review.
But Justices Samuel A. Alito Jr. and Clarence Thomas said their colleagues should have acted now, because the case “presents a question of great national importance that calls out for prompt review.”
The 4th Circuit’s decision raises a “host of important and sensitive questions” including participation in women’s and girls’ sports, access to single-sex restrooms and housing, the use of traditional pronouns, and the “administration of sex reassignment therapy” by physicians and hospitals, Alito wrote in a statement that was joined by Thomas.
“If the Fourth Circuit’s decision is correct, there should be no delay in providing the protection of the ADA to all Americans who suffer from ‘feeling[s] of stress and discomfort’ resulting from their ‘assigned sex,’ ” Alito wrote. “But if the Fourth Circuit’s decision is wrong — and there is certainly a reasonable argument to that effect — then the 32 million residents of the Fourth Circuit should not have to bear the consequences while other courts wrestle with the same legal issue.”
Williams was initially housed with women when she went to jail in 2018 after admitting to helping a drug-dealing boyfriend. Williams had changed her name and was recognized as female by her home state of Maryland, but had not had genital surgery.
When she asked a jail nurse about access to the hormones she had been taking for the past 15 years, she was reclassified and sent to male housing, based on the jail’s policy that assignments were based on a person’s genitalia.
In her lawsuit, Williams alleged that she was referred to as male by prison officers and roughly searched by men. She was not allowed a bra or consistent hormone treatment.
“Guys would watch me shower from the balcony,” Williams said in a 2022 interview with The Washington Post. “Nobody was helpful; I didn’t feel safe.”
She contacted a lawyer before her six months in jail was up, saying she was worried for other transgender people in the Fairfax jail.
But her lawsuit alleging that her treatment by Fairfax County Sheriff Stacy A. Kincaid and others violated the ADA was dismissed by a federal judge who noted that “gender identity disorders not resulting from physical impairments” were specifically excluded from the law. (Other exclusions included pedophilia, exhibitionism and voyeurism, as well as compulsive gambling and kleptomania.)
Upon appeal, Motz, joined by Judge Pamela Harris, disagreed with the district court. She wrote that the excluded “gender identity disorder” is different from gender dysphoria, relying on the current Diagnostic and Statistical Manual of Mental Disorders. It eliminates the term “gender identity disorder,” defined as a desire to change sexes, and defines “gender dysphoria” as discomfort caused by a discrepancy between gender identity and assigned sex that not all transgender people suffer from and that can be mitigated by treatment.
“The obsolete diagnosis focused solely on cross-gender identification,” she wrote, while gender dysphoria “concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender.”
Motz said the fact that Williams has treated her disorder for 15 years with hormones led credence to the claim that her conditions were physical. And she wrote that if gender dysphoria were excluded from the ADA, it would raise constitutional issues because it “would discriminate against transgender people as a class.”
Beyond the ADA, Motz said that Fairfax’s policy of classifying those detained according to genitalia appears to violate the Prison Rape Elimination Act (PREA).
“A policy that houses transgender inmates based solely on their genitalia puts transgender inmates at further risk of harm,” the court found, citing research showing that transgender women in male prisons are at much higher risk of sexual assault than other incarcerated people.
Motz was nominated to the appeals court by President Bill Clinton. Harris was nominated by President Barack Obama.
Quattlebaum, nominated by President Donald Trump, said he thought parts of Williams’s suit should be allowed to proceed. But he said his colleagues were bending the meaning of the ADA exclusions.
“Linguistic drift cannot alter the meaning of words in the ADA when it was enacted,” Quattlebaum wrote. He added: “I express no view here on the proper policy decisions concerning gender dysphoria or transgender issues. Those issues are outside my job description. Instead, I offer a legal judgment—nothing more, nothing less.”
The case is Kincaid v. Williams.